Valter v. Orchard Farm School Dist., s. 59544

• Decision Date: 13 September 1976
• Docket Number: 59125,Nos. 59544,No. 2,s. 59544,2
• Parties: Darwin VALTER, Appellant-Respondent, v. ORCHARD FARM SCHOOL DISTRICT, a Corporate Body, et al., Respondents-Appellants
• Court: Missouri Supreme Court

Page 550

541 S.W.2d 550

Darwin VALTER, Appellant-Respondent, v. ORCHARD FARM SCHOOL DISTRICT, a Corporate Body, et al.,

Respondents-Appellants.

Nos. 59544, 59125.

Supreme Court of Missouri, Division No. 2.

Sept. 13, 1976.

Motion for Rehearing or Transfer to Banc Denied Oct. 12, 1976.

Robert C. Jones, Clayton, for appellant-respondent.

John L. McMullin, St. Louis, for respondents-appellants.

FINCH, Presiding Judge.

The cross appeals in this case involve an action wherein plaintiff, a teacher, sought reinstatement, back pay and damages following his discharge by defendant school district. Count I thereof asked that plaintiff be declared to be a tenured teacher and that as such he be reinstated with back pay. In the alternative, Count II sought a determination that even if plaintiff was not a tenured teacher, his discharge was accomplished through a denial of due process. It asked for reinstatement and back pay plus damages. The trial court found for defendant on Count I and plaintiff has appealed therefrom. On Count II the court held that by the midterm discharge plaintiff was denied due process of law. He was awarded a judgment for salary for the remainder of the school year but denied reinstatement. Both plaintiff and defendant appealed from that judgment. ¹

Jurisdiction in this court is asserted on the basis that the case involves construction of the due process clauses of the state and federal constitutions (Art. I, § 10, Mo.Const. and the 14th amendment to the U.S. Const.) as they relate to a midterm dismissal of a nontenured teacher under the provisions of § 168.126, ² a question not previously decided in this state. We conclude that we do have jurisdiction on that basis. We affirm the judgment on Count I but reverse on Count II.

Plaintiff was employed by the Orchard Farm School District as a social studies teacher on October 13, 1969, effective October 15, 1969, for the remaining 165 days of the 1969--70 school year. Thereafter, his contract was renewed each spring for the school years 1970--71, 1971--72, and 1972--73. He taught as a full time teacher during each of those years.

On April 3, 1973, the school board voted on whether to reemploy both tenured and nontenured teachers for the 1973--74 school year. A motion not to reemploy plaintiff, classified as a nontenured teacher, was adopted. The teachers of the district then went on strike because the board had failed to reemploy plaintiff and two other nontenured teachers, Mrs. Schimzel and Mrs. Blair. The CTA (the teachers association) demanded reemployment of these three teachers as a condition for ending the strike. A week or so later, the school board authorized contracts for the three teachers for 1973--74 and the strike ended.

As a part of its decision to renew the contracts for those three teachers, the board directed the school superintendent to send to each teacher a so-called 90 day letter of inefficiency. ³ The president of CTA appeared before the board and requested that delivery of these letters be postponed until the start of school in the fall rather than being sent immediately. The board acquiesced in that request and the 90 day letter to Valter was not sent by the superintendent until August 31, 1973. It listed deficiencies as follows:

'1. Prompt attendance

'2. Effective use of teaching methods

a. Develop and follow lesson plans

b. Develop and define behavior objectives

'3. Develop better classroom control'

On receipt of the 90 day letter, Valter wrote to Superintendent Griffin asking for more specific information as to the deficiencies listed in the August 31 letter. On September 10, Superintendent Griffin replied that the August 31 letter was self-explanatory.

It was customary for teachers to be evaluated twice a year by the school principal. Pursuant to that practice, John Glore, who had replaced Finnel as principal of the school where Valter was teaching, promptly commenced observance and evaluation of Valter. On September 18, 1973, he gave Valter a two page memorandum covering his observation during the week of September 10 through 14, including a conference with Valter on the latter date. He reviewed what was done in an eighth grade class on each of the five days and stated that he had two very strong concerns about Valter's teaching. In the first place he stated that the lesson on the various days was not related to the lesson on other days and that he couldn't determine Mr. Valter's method of teaching American history from those five lessons. Secondly, he pointed out that Mr. Valter's system seemed to be a simple worksheet coding routine which was busy work and did not involve much initiative or thinking on the part of the student. Students spent most of their time filling out or 'coding' a printed sheet containing questions concerning Time magazine, the textbook or other materials. He requested Mr. Valter to vary his teaching techniques and to rely less heavily on the coding system and on such materials as Time.

Observance of Valter by Glore continued during the fall and on November 20, 1973, he made his written evaluation report to the superintendent. Two of the nine instructional competence criteria listed on the evaluation report form were rated as ones in which he needed improvement and five were rated as unsatisfactory. Of seven criteria for professional attitudes and characteristics, two were listed as requiring improvement and five as unsatisfactory.

A copy of the Glore evaluation was furnished to Valter who appealed therefrom as established procedure permitted. Upon receipt of that appear the superintendent designated as appeal officer a Mr. Doyle, director of special services, who was in charge of curriculum and instruction. Doyle visited Valter's classroom on November 26, 27 and 28, 1973. He then made a written report to the superintendent, with a copy furnished to Mr. Valter. He did not undertake therein to review the criteria items relative to professional attitudes and characteristics, but with reference to instructional competence reported that Valter had continued to use the coding system, with worksheets as his major instructional method in spite of the principal's directive to teach a comprehensive survey course in American history, and to rely less on the use of Time magazine and coding sheets. He found no apparent sequence to the topics considered in class. He also found that the evidence supported the principal's criticism of Valter with reference to measuring and grading student progress.

On November 29, 1973, the superintendent wrote Mr. Valter that his 90 day probationary period had ended and the board would not decide whether his employment would continue or be terminated. He advised that if Valter desired an audience with the board, it would be scheduled for the evening of December 10, 1973.

In response Valter wrote on December 3, 1973, complaining that the letter did not contain a statement of charges, did not indicate what recommendation the superintendent would make to the board and did not spell out the procedure to be followed. He then itemized 13 procedures which he would expect to be followed and advised that he would object to any hearing not conducted in accordance therewith.

The superintendent replied on December 6, 1973, stating that Missouri law did not require a hearing but the board was giving Valter the opportunity therefor if he so desired. It rejected some of the conditions and procedures listed in Valter's letter of December 3 but acquiesced in some, such as the right to be represented by counsel, to offer evidence and to cross-examine. It stated that a transcript would not be furnished but that Valter could record the hearing at his own expense if he so desired.

The hearing was held on the evening of December 10, 1973. Valter testified on his own behalf and Paul Barr, CTA president, and Tom King, a teacher, made statements on his behalf. Glore and Doyle, then testified on behalf of the school district. On the basis of findings during his evaluation Glore recommended that Valter's employment be terminated. The board postponed a decision until its meeting on December 17, 1973, at which time it voted unanimously to terminate Valter's employment as of December 18, 1973. The motion stated that termination was 'for the reason that his work as a teacher has been unsatisfactory in accordance with his evaluations by Mr. John Glore and Mr. Larry Doyle.' Pursuant to that action, Valter was notified by telegram and by letter that his employment was terminated.

The first issue for determination is whether Valter was a permanent (tenured) teacher or whether, as the trial court found, he was a probationary teacher. Sec. 168.104 defines a permanent teacher as one 'who has been employed * * * as a teacher in the same school district for five successive years and who has continued or who thereafter continues to be employed as a full-time teacher by the school district; * * *.' It defines a probationary teacher as one 'who has been employed full time in the same school district for five successive years or less', with the proviso that the board of education shall waive one year of the probationary period if the probationary teacher has been employed in any other school system as a full time teacher for two years or more. Valter's prior employment in other schools qualified him for this credit of one year, with the result that we must determine whether he was employed by the Orchard Farm School District for four successive years and was thereafter continued as a full time teacher.

Valter began his employment with Orchard Farm on October 15, 1969, and worked for the remainder of the school year. Thereafter, he served full time during the school years 1970--71, 1971--72 and 1972--73. He then was reemployed for the year 1973--74. Does that constitute full time employment for four years with continued employment for a fifth year? This question necessarily involves a determination of...